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[2026] ZAWCHC 450
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Barnabas v Passenger Rail Agency of South Africa (2758/2014) [2026] ZAWCHC 450 (26 August 2026)
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THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE
DIVISION, CAPE TOWN)
JUDGMENT
Not
Reportable
Case
No:
2758/2014
In
the matter
between:
AISHA
BARNABAS
PLAINTIFF
and
PASSENGER RAIL AGENCY
OF SOUTH AFRICA
DEFENDANT
Coram:
YAKE AJ
Heard:
11 August 2026
Delivered:
Electronically on 26 August 2026
Summary:
Delict – PRASA under public legal
duty to ensure reasonable security measures are in place to protect
passengers from harm
–
failure
to close carriage’s doors amount to negligence– validity
of train ticket not a requirement for liability.
ORDER
1.
The
defendant is liable for 100% of the plaintiff’s proven damages
resulting from the incident of falling from a train on
9 May 2011.
2.
The defendant is ordered to
pay the plaintiff’s costs on a party and party scale, including
the cost of Counsel to be taxed
on a Scale B.
JUDGMENT
YAKE, AJ:
Introduction
[1]
The plaintiff instituted an
action against the defendant for damages arising from an incident
which occurred on 9 May 2011 on a
train operated by the latter,
travelling from Cape Town to Mitchell’s Plain via Nyanga
stations. It is alleged that when
the train departed from Nyanga
station,
a commotion arose within
the carriage occupied by the plaintiff. During the course of the
commotion, the plaintiff was allegedly
pushed out of the moving train
through an open door (“the incident”) by a man who
purportedly robbed her of her bag.
Consequently, upon this
occurrence, the plaintiff fell onto the adjacent railway track and
sustained injuries.
[2]
The plaintiff avers that the incident was occasioned by the
negligence of the defendant and/or
its employees, in that they
permitted the train to travel with its doors open, thereby failing to
exercise the reasonable care
and diligence required to avert
foreseeable harm.
[3]
As a result of the incident, the plaintiff sustained a severe
laceration to the leg, a laceration
to the head accompanied by a
haemorrhagic contusion, and a dislocated shoulder. She was thereafter
hospitalized, underwent medical
treatment, rendered disabled,
suffered pain, and is anticipated to suffer loss of income as well as
a diminution in the amenities
of life.
[4]
The defendant, in turn, denies negligence and pleads that the
plaintiff was solely responsible
for her injuries. In the
alternative, it contends that, should the Court find negligence on
its part, the plaintiff’s own
conduct contributed thereto.
[5]
At the commencement of the trial, the parties agreed to separate the
issues of merits and quantum.
The proceedings thus advanced on the
merits alone. Two witnesses testified in support of the plaintiff’s
case, while one
witness was called on behalf of the defendant.
Plaintiff’s
case
[6]
The plaintiff testified that on 9 May 2011, between 17h00 and 18h00,
she was returning home from
work. She boarded a train from Salt River
bound for Cape Town station, where the doors were closed. Upon
arrival at Cape Town,
she changed to a train destined for Mitchell’s
Plain via Nyanga stations. On this latter train, the doors remained
open from
Cape Town until Nyanga station.
[7]
The plaintiff testified that, owing to the absence of available
seating, she was standing in the
middle of the carriage. She observed
approximately five men commencing to rob passengers. A commotion
ensued, with passengers rising
and moving towards the end of the
carriage. In the course of this movement, she was pushed in the
direction of the open doors.
As the train began to move, one of the
men approached her while she was positioned close to the door. This
man passed her, grabbed
her bag which was on her right arm, and
jumped out from the train. In doing so, he pulled her by her jacket,
causing her to be
dragged out of the carriage and to fall onto the
railway tracks, landing on her back.
[8]
Under cross examination, she was
confronted with the discrepancy between her viva voce evidence and
her particulars of claim.
It was put to her that she had not pleaded
that a robbery occurred on the train. She clarified that, from her
vantage point, she
initially believed the disturbance in the carriage
to be a fight. It was only when the perpetrators came closer that she
realised
the incident was in fact a robbery.
[9]
After her fall, she was conveyed by fellow passengers to Mitchell’s
Plain Day Clinic by
train and was thereafter transferred to Groote
Schuur Hospital for further medical treatment. While she remained
hospitalised,
her bag was returned to her father’s residence.
Her belongings, including her monthly train ticket, were found intact
therein.
[10]
Following the incident, the plaintiff recounted the events to her
friend, Ms Shamilla Abrahams, who was employed
by the defendant. Ms
Abrahams indicated that she would consult her supervisor. After doing
so, she advised the plaintiff to submit
her monthly train ticket.
Upon submission, the defendant offered the plaintiff compensation in
the amount of R50 000. The plaintiff
declined the offer, asserting
that she had legal representation. However, under cross examination
it emerged that, at the
time she rejected the defendant’s
offer, she had not yet consulted attorneys.
[11] Ms
Shamilla Abrahams confirmed that the plaintiff is her friend. At the
time of the incident, she was employed
by the defendant, where her
duties included receiving complaints and providing information to
passengers. She testified that, whilst
on duty, the complainant
attended at the information office and reported the incident to her.
Ms Abrahams recorded the complaint
in the official complaint report
book, took down the complainant’s personal details, and
received her monthly train ticket.
She then handed the ticket to her
supervisor, Mr Robert Matiwane, who signed the complaint report book
and thereafter took possession
of the ticket.
[12]
Under cross examination, Ms Abrahams was confronted with the
plaintiff’s evidence that the plaintiff
had informed the court
that she did not have her train ticket during their first meeting but
only produced it on a subsequent occasion.
In response, Ms Abrahams
altered her testimony, stating that it was possible that she had in
fact received the ticket during the
second meeting.
This concluded the evidence for the plaintiff.
Defendant’s
case
[13]
The defendant called Mr Thando Klaas, its investigator, to testify.
His evidence was largely of a procedural
nature and did not
materially advance the resolution of the dispute. He explained that
when an incident is reported at a station,
the station records the
complaint and forwards it to the regional office, which in turn
submits it to the head office legal department.
The legal department
then makes a determination, and any decision, including an offer of
compensation, is communicated to the claimant
in writing, not
telephonically.
[14] Mr
Klaas further testified that he assumed responsibility for the matter
from last year (2025), having taken
over from his colleague, Mr Van
Reenen, who had been the original investigator. He consulted the
incident register and retrieved
a fault report. His investigation
confirmed that the plaintiff had reported the incident. He stated,
however, that the defendant
does not physically take possession of a
passenger’s ticket when an incident is reported but merely
records the ticket number.
This practice, he explained, ensures that
the passenger retains proof of having held a valid ticket.
[15]
Under cross examination, he conceded that he was not involved in
the settlement process, which fell
within the remit of the
defendant’s legal department. He further acknowledged that he
lacked first hand knowledge of
the incident, as he was not the
original investigator, and that his evidence was based on the work
conducted by his predecessor.
[16]
Save for admitting that the incident occurred on 9 May 2011, and that
it bore a legal duty to provide reasonable
measures of safety to its
commuters, the defendant denied that the plaintiff was a fare paying
passenger and denied that she
was pulled out of the moving train.
[1]
The defendant further denied that its employees were negligent in any
manner.
[2]
It contended that the
plaintiff was solely negligent, alternatively that she contributed to
the negligence which resulted in her
injuries.
[3]
In particular, the defendant pleaded that the plaintiff failed to
exercise reasonable care for her own safety, and that her conduct
in
the circumstances materially contributed to the harm she suffered.
With this, the defendant closed their case.
Issues
to be determined
[17]
The Court is enjoined to determine the following issues:
(a)
Whether the plaintiff was in possession of a valid
ticket entitling her to be on the train;
(b)
Whether the doors of the train were left open
whilst the train was in motion, thereby constituting prima facie
negligence on the
part of the defendant;
(c)
Whether a causal nexus exists between any
negligent conduct on the part of the defendant and the injuries
sustained by the plaintiff;
and
(d)
In the
event that negligence on the part of the defendant is established,
whether the plaintiff’s own conduct contributed
thereto, thus
warranting an apportionment of liability in terms of the
Apportionment of Damages Act.
[4]
Analysis
Valid
train ticket
[18] It
is trite that the existence of a valid train ticket constitutes, at
the very least, prima facie proof
that the plaintiff was a passenger
and thus a lawful train user. The onus accordingly rests upon the
plaintiff to establish her
lawful presence on the train. This burden
may be discharged through documentary evidence such as the ticket
itself, a receipt of
purchase, or corroborating testimony.
Ordinarily, such proof suffices to establish contractual entitlement
to conveyance and affirms
the contractual nexus between passenger and
carrier, thereby strengthening the plaintiff’s standing to
claim. However, as
correctly contended by the plaintiff’s
counsel, the absence of a ticket is not a
sine qua non
for
liability. Liability does not depend exclusively upon proof of
contractual breach or possession of a valid ticket. The Court
must
therefore weigh the credibility and reliability of the evidence
tendered against the probabilities, in order to determine
the
liability of the defendant.
[19]
South African jurisprudence recognises that common carriers, such as
the defendant, owe a general duty of
care to all persons lawfully
upon their premises or conveyances. Even in the absence of
contractual entitlement, liability may
arise in delict where harm is
foreseeable and preventable. Accordingly, while possession of a valid
ticket evidence contractual
entitlement and strengthens the
plaintiff’s standing, its absence does not necessarily absolve
the defendant of liability.
The enquiry must therefore extend beyond
contractual entitlement to encompass the broader delictual duty of
care owed by carriers,
measured against the standard of
reasonableness.
[20]
The evidence placed before this Court is that the plaintiff held a
monthly ticket, a version corroborated,
albeit imperfectly, by Ms
Abrahams. The defendant adduced no direct evidence to contradict this
assertion, relying instead upon
the absence of pleading particulars
and alleged inconsistencies. While it is correct that the plaintiff
did not furnish identifying
details of the ticket in her pleadings,
such omission is not in my view necessarily fatal where viva voce
testimony is led and
remains substantively unchallenged. The
defendant’s reliance upon the testimony of Mr Klaas, which was
plainly derivative
and devoid of first hand knowledge, does
little to advance its case. Such evidence, lacking independent
probative value, cannot
meaningfully undermine the plaintiff’s
version.
[21] I
note that the defendant seeks to rely on the contradictions between
the evidence of the plaintiff and that
of Ms Abrahams; as well as the
discrepancies in the particulars of claim. These contradictions while
noted, are not of such magnitude
as to displace the core of the
plaintiff’s version. They are reasonably attributable to the
considerable lapse of time; 15
years; between the incident and the
testimony. As such the Court must guard against elevating minor
inconsistencies into determinative
findings, particularly where the
essential fact, namely that the plaintiff possessed a monthly ticket,
remains supported by corroborative
testimony.
[22]
Similarly, the discrepancies between the pleadings and the viva voce
evidence have been explained by the
plaintiff. Moreover, it must
further be borne in mind that pleadings are not intended to be models
of precision, but rather to
define the core issues in dispute between
the parties, so that each party is made aware of the case it must
meet. In this context,
the plaintiff’s oral testimony,
corroborated in material respects, carries sufficient weight to
overcome the defendant’s
reliance on technical pleading
omissions.
[23]
Furthermore, the omission to call the plaintiff’s father is
regrettable but not decisive, for the central
issue remains whether
the plaintiff herself held a valid ticket. In any event, as
emphasised in
Marbe
NO v PRASA,
[5]
possession of a valid ticket is not a prerequisite for liability. The
Constitutional Court in
Mashongwa
v PRASA
[6]
underscored that the defendant bears a positive constitutional duty,
flowing from Section 12 of the Constitution,
[7]
to take reasonable measures to protect passengers from foreseeable
harm while making use of its services. This duty arises from
the very
nature of the defendant’s operations as a public carrier
entrusted with the safe conveyance of commuters, and not
from the
existence of a contractual entitlement such as a ticket.
[24] As
such I agree with Counsel for the plaintiff’s submission that
the presence of some contradictions
may in fact support the
credibility of the witnesses. Perfectly aligned testimony after such
a lengthy passage of time might have
raised suspicion of coaching or
collusion. Minor inconsistencies are, in my view consistent with
natural human memory and do not
materially detract from the
plaintiff’s case. It would further be unreasonable to expect
the plaintiff to recall the precise
cost of a monthly train ticket in
2011. Such detail is peripheral to the central inquiry, which is
whether she was a lawful train
user. Instead, the Court must focus on
substance rather than minutiae.
[25]
Regarding whether the incident constituted a robbery or a fight, the
plaintiff explained that she initially
believed it to be a fight, but
upon closer proximity, she realised it was a robbery. This
explanation is, in my view acceptable,
as it reflects the natural
progression of the plaintiff’s perception in a chaotic
environment. This does not in any way detract
from her credibility as
a witness. Similarly, while concerns of bias have been duly noted,
they do not suffice to displace the
prima facie proof that the
plaintiff was a passenger. Bias alone does not render testimony
inadmissible or unreliable. The Court
must consider whether the
witness’s account is consistent with the probabilities and
withstands scrutiny in light of the
broader evidentiary record. In
this matter, the evidentiary record supports the conclusion that the
plaintiff held a valid monthly
ticket, thereby establishing her
lawful presence upon the train.
[26]
In the result, I found that the plaintiff and Ms Abrahams to be
credible and reliable witnesses despite minor
contradictions and
discrepancies in their evidence. It is my considered view that
the contradictions and the peripheral uncertainties
highlighted by
the defence do not suffice to undermine the plaintiff’s
version. The plaintiff’s evidence that she held
a valid monthly
ticket stands on a balance of probabilities. The defendant’s
argument concerning the absence of a ticket
is my view irrelevant to
the determination of delictual liability. Its reliance on this
defence is misconceived, legally untenable,
and stands to be
dismissed. The duty of care owed to commuters arises independently of
contractual entitlement and is rooted in
both constitutional and
delictual principles
[8]
[27]
I align myself with the sentiments expressed by Magona-Dano AJ in
Marbe
NO
[9]
supra
,
where it was held that the absence of a ticket is not a statutory
requirement for liability and does not extinguish the duty of
care
owed by the defendant to its commuters. Accordingly, I find that the
plaintiff held a valid monthly ticket and was a lawful
train user. In
the result, the Court is satisfied that the plaintiff has discharged
the onus of proving lawful presence on the
train. The inquiry must
now proceed to the second issue, namely whether the defendant had a
legal duty of care to the plaintiff.
Wrongfulness
and the defendant’s legal duty
[28]
The plaintiff has averred in her particulars of claim that in terms
of sections 15 and 23(1) of the Legal
Succession to the South African
Transport Services Act 9 of 1989 (‘the Act’), the
defendant was under a legal duty
to take such steps as were
reasonable to ensure her safety while travelling in one of its
trains. The plaintiff contends that the
defendant omitted to
discharge the aforesaid duty by failing to ensure that security
personnel were
dispatched to
safeguard commuters, and by failing to take reasonable steps to put
and implement a proper and adequate safety and
security service.
The
plaintiff further contended further that the defendant failed to
install a safe and secure door system which would remain closed
at
all times whilst the train is in motion.
These
omissions, she argued, constituted a breach of both the defendant’s
statutory obligations under the Act and its broader
duty of care,
thereby exposing commuters to foreseeable harm.
[29]
Conversely, the defendant did not deny the existence of such legal
duty but denied that its employees were
negligent in any manner,
alleging instead that the plaintiff was the sole cause of negligence,
alternatively that she contributed
thereto
.
[10]
[30]
As a public carrier operating in the public interest, the defendant
is expected to operate trains which are
safe for the purpose of
conveying passengers. It bears a legal duty to the public at large to
take such steps as are reasonably
necessary to ensure the safety of
commuters whilst travelling on any of its trains. The public law duty
to provide transport that
is safe and secure for commuters manifests
itself in the private-law legal duty to prevent harm to
commuters.
[11]
[31]
In
Rail
Commuters Action Group v Transnet Limited t/a Metrorail
[12]
the
Constitutional Court recognized that rail commuters in their
thousands use the rail system daily and once they board a
train, find
themselves in a vulnerable position and even targeted by criminals on
board the same train. Paragraph 82 of the aforementioned
judgment
held that Metrorail owed a positive duty to ensure that reasonable
measures were in place to cater for the safety and
security of rail
commuters. Significantly, the Constitutional Court made it clear that
it mattered not who implemented these measures
as long as they were
in place. The court went further to state that:
‘
In
these circumstances, I conclude that Metrorail and the Commuter
Corporation bear a positive obligation arising from the provisions
of
the SATS Act read with the provisions of the Constitution to ensure
that reasonable measures are in place to provide for the
security of
rail commuters when they provide rail commuter services under the
SATS Act. It should be clear from the duty thus formulated
that it is
a duty to ensure that reasonable measures are in place. It does not
matter who provides the measures as long as they
are in place. The
responsibility for ensuring that measures are in place, regardless of
who may be implementing them, rests with
Metrorail and the Commuter
Corporation.’
[32]
In
Mashongwa,
[13]
the
Constitutional Court, following the principle established in
Rail
Commuters
[14]
case,
confirmed that the defendant owed a public duty to rail commuters and
described this duty as follows:
‘
Safeguarding
the physical and well-being of passengers must be a central
obligation of PRASA. It reflects the ordinary duty resting
on public
carrier’s and is reinforced by the specific constitutional
obligation to protect passengers’ bodily integrity
that rests
on PRASA, as an organ of state. The norms and values derived from
the
Constitution
demand
that a negligent breach of those duties, even by way of omission,
should, absent a suitable non-judicial remedy, attract
liability to
compensate injured persons in damages.’
[33]
It must be emphasized from the outset that the defendant accepted
that it owed a legal duty of care to commuters
in general which
include among others to ensure that the train doors are closed when
the train is in motion. Against the backdrop
of
Mashongwa
and
Rail
Commuters
supra,
it
is thus apparent that the defendant bears a public law duty to
protect rail commuters, which includes a duty of care towards
the
plaintiff.
Put
differently, there can be no doubt that the defendant owed the
passengers who made use of its services, including the plaintiff,
the
legal duty as contended for by the plaintiff.
However,
this does not mean that the mere existence of such duty automatically
translates into delictual liability. For liability
to arise in
delict, the defendant must have failed to take reasonable steps to
provide for the safety of commuters, and such failure
must be
causally connected to the harm suffered. Any omission to take such
steps may render the defendant liable in
delict.
[15]
This
leads to the next inquiry, namely whether the defendant was negligent
in permitting the train doors to remain open whilst the
train was in
motion, thereby breaching its legal duty.
Negligence
[34]
The test for negligence as set out in
Kruger
v
Coetzee,
[16]
can be summarised as follows:
(a)
first,
whether a reasonable person
in the position of the defendant would foresee the reasonable
possibility of harm;
(b)
second, would the defendant take steps to
guard against such harm; and
(c)
third,
did
the defendant in fact take such reasonable steps to avert the harm.
[35]
The Court must scrutinise the factual matrix, including the testimony
of the witnesses and operational records,
to determine whether the
defendant failed in its duty to ensure passenger safety. In
Ngubane
v South African Transport Services,
[17]
Kumleben
JA adopted and applied this
dictum
on
the basis that the ‘reasonable steps’ envisaged in
paragraph (a)(ii) were ‘not necessarily those which would
ensure that foreseeable harm of any kind does not in any
circumstances eventuate’. The learned Judge relied in this
regard
on a passage from the first edition of
LAWSA
volume
8 para 43 at 78, where Professor J C van der Walt stated that, ‘once
it was established that a reasonable man would
have foreseen the
possibility of harm, the question arose whether he would have taken
measures to prevent the occurrence of the
foreseeable harm. This
would depend on the circumstances of the case, subject to four basic
considerations which might be relevant
to the response of a
reasonable man to a situation creating a foreseeable risk of harm to
others.’
[36]
The evidence before this court which remained unchallenged, is that
when the plaintiff boarded the train
from Salt River to Cape Town
stations, the doors were closed. However, when the train proceeded
from Cape Town en route to Mitchell’s
Plain, the doors remained
open. Furthermore, it was unchallenged that no security personnel
were present in the carriage to ensure
that the doors were closed
while the train was in motion.
[37] I
take cognisance of Mr Klaas’s evidence that trains do not
operate with doors open, and his suggestion
that any fault would have
been recorded in the fault register. Yet, his testimony was based on
a document he did not author, and
his contention is far fetched.
This Court takes judicial notice that trains are, from time to time,
in motion while commuters
stand at open doors. Moreover, Mr Klaas’s
assertion is not supported by the evidence in this matter, nor by
numerous other
cases adjudicated against the defendant by different
courts. If his contention were correct, the plaintiff would not have
been
pulled out of the train, and the incident would not have
occurred.
[38]
The demeanour and content of Mr Klaas’s evidence did not leave
a favourable impression upon this Court.
He came across as the person
whose sole purpose in testifying was to defend the position of the
defendant. This is borne out by
his assertion, made as a matter of
fact, that the train doors were not open, notwithstanding that he
relied entirely upon the findings
of his colleague and possessed no
first hand knowledge of the incident. His reluctance to make
concessions on matters falling
squarely within the scope of the legal
department, of which he is not a member, further undermined the
credibility of his testimony.
While counsel for the defendant
endeavoured to create the impression that Ms Abrahams was biased, the
Court finds that it was Mr
Klaas who demonstrated partiality. He
purported to testify on matters beyond his personal knowledge,
thereby diminishing the probative
value of his evidence. The Court is
compelled to conclude that the defendant sought to escape liability
by presenting evidence
of a witness whose knowledge was derivative
and whose testimony was coloured by bias.
[39]
Our courts have repeatedly cautioned against the danger posed by
trains operating with doors open while in
motion. In
Chauke
v Passenger Rail Agency of South Africa
,
[18]
with reference to
Transnet
Limited t/a Metrorail and Another v Witter
,
[19]
the court confirmed that a train moving with open doors constitutes
negligence.
Similarly,
in
Passenger
Rail Agency of South Africa v Moabelo,
[20]
the courts held that an open train door is a potential danger while
the train is in motion and that such danger exists in relation
to
every commuter on board the train.
[40]
In
Mashongwa,
[21]
the Constitutional Court emphasised that the defendant’s duty
to keep the train doors closed while the train is in motion
exists to
prevent passengers from falling out. Doors exist not merely to
facilitate entry and exit of passengers, but also to secure
those
inside from danger. The Court clarified that the negligence test in
the context of the defendant involves the standard of
a reasonable
organ of State test,
[22]
not
merely that of a reasonable person. This recognizes that an organ of
State is in a different position to that of an individual.
The
question
is whether a reasonable organ of State, in the defendant’s
position, would have foreseen harm befalling the plaintiff
as a
result of the train doors being open while in motion.
[41]
To meet minimum safety standards, the defendant was obliged to ensure
that the train did not depart the station
with open doors, and that
doors remained closed while in motion. By not doing so, the defendant
not only exposed the plaintiff
to danger but all other commuters that
were in the train. In allowing the doors to remain open, the
defendant failed in its legal
duty towards the plaintiff. Its
employees omitted to close the doors, thereby giving rise to
negligence
and
such conduct is not acceptable.
[23]
[42] In
the result, I find that the defendant failed to comply with the
safety precaution of keeping train doors
closed, and such failure
amounts to negligence. In my view, a reasonable organ of State in the
defendant’s position, owing
a public law duty to commuters,
would have ensured that the doors were closed to prevent the
plaintiff’s fall. I find that
the reasonable possibility of
harm was foreseeable, and the defendant’s omission constitutes
actionable negligence.
Causation
[43]
The next inquiry is whether a causal nexus exists between the
defendant’s negligent conduct and the
plaintiff’s
injuries; that is harm suffered by the plaintiff.
[24]
The test is whether the harm would nonetheless have ensued even if
the omission; namely, the failure to close the train doors while
in
motion; had not occurred. Put differently, the Court must ask
what would probably have happened had the defendant ensured
that the
train doors were closed during the journey undertaken by the
plaintiff.
[44]
Notwithstanding Mr Klaas’s insistence that trains do not travel
with doors open, the evidence presented
proves otherwise. It was
established that the incident occurred on a moving train, with the
doors open from Cape Town to Nyanga
stations. The open doors directly
resulted in the plaintiff falling and sustaining injuries to her
head, shoulder, and legs. These
injuries are connected to the
defendant’s failure to take preventative measures by keeping
the carriage doors closed while
the train was in motion.
[45]
In my view, had the defendant ensured that the doors were closed, the
probabilities indicate that the plaintiff
would not have fallen from
the train. She would, in all likelihood, have remained safely inside
until reaching her destination
at Mitchells Plain. Importantly, she
would have remained unharmed, as the closed doors would have
prevented her fall. The defendant’s
negligent omission in
failing to close the doors, in circumstances where it bore the duty
to provide safe passage to the plaintiff
and other commuters, is
closely connected to the harm suffered. The causal nexus between the
omission and the injuries is established.
Accordingly, the Court
concludes that the defendant is liable to the plaintiff for her loss
and therefore negligent.
Contributory
negligence and assumption of risk
[46]
What remains is whether the defendant contributed to the negligence
or her conduct amounted to assumption
of risk. The defendant, in its
plea, has advanced several defences in which it contends that the
plaintiff was either the sole
cause of the negligence, or
alternatively that she contributed thereto.
[25]
In essence the defendant relies on
volenti
non fit injuria
and
contributory negligence.
Volenti
non fit injuria,
though
conceptually distinct from contributory negligence, often arises in
tandem. The essence of the defence
volenti
non fit injuria
lies
in the voluntary acceptance by the plaintiff of a known and
appreciated danger, thereby negating or reducing liability on the
part of the defendant. For the defence to succeed, it must be shown
that the plaintiff possessed full knowledge of the risk, appreciated
its nature and extent, and nonetheless consented to encounter it.
[47]
By contrast, contributory negligence under the Apportionment of
Damages Act
[26]
requires only
that the plaintiff’s conduct materially contributed to the
harm. In
South
African Railways and Harbours v Symington,
[27]
the
court recognised that failure to take reasonable precautions, such as
neglecting to wear a seat belt, may constitute contributory
negligence if causally linked to the injuries sustained.
[48]
Our courts have consistently emphasised that mere awareness of a risk
does not suffice; there must be evidence
of voluntary acceptance. In
Santam
Insurance Co Ltd v Vorster
,
[28]
the Appellate Division held that assumption of risk is not lightly
inferred, and the defendant bears the onus of establishing it
on a
balance of probabilities.
[49]
Thus, while contributory negligence apportions liability between the
parties, assumption of risk may, in
appropriate circumstances,
operate as a complete defence. The distinction lies in whether the
plaintiff’s conduct merely
contributed to the harm, or whether
it amounted to a conscious and voluntary acceptance of the risk
inherent in the defendant’s
conduct.
[50]
It is settled law that for a defence of contributory negligence to
succeed, the defendant must adduce evidence,
on a balance of
probabilities, establishing negligence on the part of the plaintiff,
and further that such negligence was causally
connected to the
damages sustained.
[29]
Mere
allegation is insufficient; proof is required. The onus accordingly
rests upon the defendant to demonstrate both the existence
of
negligent conduct by the plaintiff and the causal nexus between that
conduct and the harm suffered.
[30]
[51]
The question of contributory negligence has been addressed by our
courts on numerous decisions. I
n
Fox
v RAF
[31]
the
court stated that:
‘
Where
the defendant had in the alternative pleaded contributory negligence
and an apportionment, the defendant would have to adduce
evidence to
establish negligence on the part of the Plaintiff on a balance of
probabilities. Also see Johnson Daniel James v Road
Accident Fund
case number 13020/2014 GHC paragraph 17, confirming Solomon and
Another v Musset and Bright Ltd
1926
AD 427
at
435.’
[52]
In addition, where reliance is placed upon the doctrine of
volenti
non fit injuria
,
the defendant bears the burden of proving that the plaintiff had
knowledge of the risk inherent in standing at the open door of
a
train while it was in motion, that she appreciated the extent of such
risk,
[32]
and
that she voluntarily consented thereto.
[53]
The defendant led no evidence to suggest that the plaintiff either
opened the train doors herself or caused
them to be opened in any
manner. Nor is there evidence establishing that the plaintiff
remained in close proximity to the open
door. On the contrary, the
evidence demonstrates that the environment within the carriage was
chaotic, with a group of approximately
five men engaged in robbing
passengers. To expect any person, under such circumstances, to
exercise control over her precise position
in relation to the open
door is manifestly unreasonable. In such a situation, it is natural
and foreseeable that a passenger would
act instinctively to evade the
robbers.
[54]
Moreover, the evidence establishes that the plaintiff was forcibly
pulled when one of the assailants attempted
to abscond with her bag.
There is no evidence tendered to show that she foresaw the reasonable
possibility of falling from the
train, or that she appreciated the
likelihood of being dragged out in circumstances where the train’s
doors were open.
[55]
I
n
the result, no evidence was led by the defendant which would warrant
a finding that contributory negligence was established, nor
that the
essential elements of the defence of
volenti
non fit injuria
were
proved. The submissions advanced by the defendant’s counsel are
accordingly unsubstantiated. Having regard to the totality
of the
evidence and the conclusions set out above, I am satisfied that the
defendant is solely liable for the harm suffered by
the plaintiff.
[56]
Accordingly, I find that the defendant has failed to discharge the
onus resting upon it in respect of the
defence of contributory
negligence. The evidentiary threshold required to sustain such a
defence has not been met, and it must
therefore be dismissed. The
plaintiff therefore succeeds on the merits of her claim.
Costs
[57] It
is trite that costs follow the result, save where exceptional
circumstances justify a departure. In the
present matter, the
postponement of 13 March 2026 was occasioned by the absence of the
court file. The defendant, represented by
Ms Nharmuravate, was
present and prepared to proceed. There is accordingly no basis to
visit the defendant with an adverse costs
order for a postponement
that was not of their making. In the circumstances, fairness dictates
adherence to the general rule, and
I see no reason to deviate
therefrom. Costs shall therefore follow the result.
Order
[58]
In the results, I make the following
order:
(a)
The defendant
is liable for 100% of the plaintiff’s proven damages resulting
from the incident of falling from a train on
9 May 2011.
(b)
The defendant is ordered to pay the plaintiff’s costs on a
party and party scale, including
the cost of counsel to be taxed on a
Scale B.
S YAKE
ACTING JUDGE OF THE
HIGH COURT
Appearances
For the Plaintiff:
SF Mouton
Instructed by:
Boshoff Njokweni Attorneys
For the Defendant:
N Nharmuravate
Instructed by:
Werksman Attorneys
[1]
Page
18 and 19 of record at para 3.1 to 3.2
[2]
Page
19 of record at para 5.2
[3]
Page
19 and 20 of record para 5.4 to 5.6
[4]
Apportionment
of Damages Act 34 of 1956.
[5]
Marbe
NO v Passenger Rail Agency of South Africa
[2026]
ZAWCHC 43.
[6]
Mashongwa
v PRASA
[2015]
ZACC 36; 2016 (2) BCLR 204 (CC); 2016 (3) SA 528 (CC).
[7]
The
Constitution of the Republic of South Africa, 1996.
[8]
Shabalala
v Metrorail
[2007]
ZASCA 157
par 7.
[9]
Marbe
NO
supra
para 69 - 74.
[10]
Page
19 - 21 of record.
[11]
Mashongwa
v PRASA
[2015]
ZACC 36
para 28 – 29.
[12]
Rail
Commuters Action Group and Others v Transnet Limited t/a Metrorail
and Others
[2004]
ZACC 20
;
2005 (2) SA 359
(CC);
2005
(4) BCLR 301
(CC) para 82
–
85.
[13]
Mashongwa
supra
para 26
–
27.
[14]
Rail
Commuters
supra
para
82.
[15]
Shabalala
v Metrorail
[2007]
ZASCA 157
para
7.
[16]
Kruger
v Coetzee
1966
(2) SA 428
(A)
at 430.
[17]
Ngubane
v South African Transport Services
[1990]
ZASCA 148
;
1991
(1) SA 756
(A)
at 776D-777J.
[18]
Chauke
v Passenger Rail Agency of South Africa
[2015]
ZAGPPHC 1075.
[19]
Transnet
Limited t/a Metrorail and Another v Witter
2008
(6) SA 549 (SCA).
[20]
Passenger
Rail Agency of South Africa v Moabelo
[2017]
4 All SA 648
(SCA).
[21]
Mashongwa
s
upra
para 60.
[22]
Mashongwa
s
upra
para
40.
[23]
Witter
supra
para 5.
[24]
J
Neethling, J M Potgieter and P J Visser
Law
of Delict
7
ed (2015) at 125.
[25]
Page
19 and 20 of record.
[26]
Act
34 of 1956.
[27]
South
African Railways and Harbours v Symington
1935
AD 37.
[28]
Santam
Insurance Co Ltd v Vorster
1973
(4) SA 764 (A).
[29]
L T C
Harms
Amler’s
Precedents of Pleadings
7
ed (2009) at 125.
[30]
South
British Insurance Co Ltd v Smit
1962
(3) SA 826 (A).
[31]
Fox
v RAF
[2018]
ZAGPPHC 285 para 13.
[32]
Lampert
v Hefer
1955
(2) SA 507
(A);
Law
of Delict
supra
at 178.